On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-11-00955.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Fuentes and Simonelli.
This appeal requires us to determine whether the spousal privilege in N.J.R.E. 501(2) can be pierced by applying the factors outlined by the Court in In re Kozlov, 79 N.J. 232, 243-44 (1979), used in that case to pierce the privilege afforded to communications between an attorney and his or her client. The trial court applied the Kozlov factors to compel the spouse of defendant James J. Mauti to testify as a witness for the State in this criminal action. We now reverse the trial court's ruling and hold that the factors identified by the Court in Kozlov are inapplicable to pierce the status privilege conferred by N.J.R.E. 501(2).
The following facts will inform our discussion of the issues raised by the parties in this appeal.
On December 1, 2006, "Joanne"*fn1 L. gave a recorded statement to detectives of the Springfield Police Department. In that statement, she alleged that defendant, who was her employer and her older sister's boyfriend, had sexually assaulted her on November 25, 2006 at his medical office. The following account of what allegedly transpired on that date is taken from Joanne's statement to the police.
Defendant is a physician who practices internal and sports medicine. The alleged sexual assault occurred approximately two months after Joanne began working for defendant in an administrative capacity. Defendant's office is located in the same building as his residence. At the time of this incident, Joanne's sister, Jeannette L., had been romantically involved with defendant for ten years and had lived with him for the previous two years. Jeannette also worked for defendant as his office manager.
Joanne had been experiencing back pain for approximately two weeks before the alleged assault. Defendant treated her pain on Thanksgiving by giving her two doses of two pills that he indicated were a combination of a muscle relaxer and a painkiller. He also "cracked" Joanne's back and neck earlier that week, and massaged a "knot" in her lower back. This treatment temporarily abated her pain.
The alleged assault occurred on the Saturday after Thanksgiving. As was customary, the medical office was closed on weekends; however, Jeannette had arranged with defendant to allow Joanne to work extra hours that day. Joanne arrived at the office at 10:00 a.m. and worked until 11:30 a.m., when she started to feel pain in her back. Joanne told defendant that she wanted to go home and lay down because her back pain was starting to flare up. Defendant offered to massage her back, the same treatment that proved effective in relieving her pain earlier that week. Joanne agreed and waited for him in a patient room to begin the treatment.
When he arrived in the room, defendant told Joanne to lay down and gave her the same two muscle relaxer and pain reliever pills she had taken on Thanksgiving. Additionally, defendant gave her a little plastic cup containing what he described as "a liquid muscle relaxer." Immediately after swallowing the liquid, Joanne felt as if she had been drugged; although she was aware of her surroundings, she was sleepy and experienced "a feeling of being drunk." Defendant then injected her back with an unknown substance.
From this point on, Joanne had difficulty remembering the sequence of events and lost her ability to keep track of time. At some point after he injected her, however, Joanne recalls defendant asking her to change into a pair of his boxer shorts. When she asked why this was necessary, he said: "[W]ell just in case I have to crack you." The next thing she remembers is being awakened by defendant after approximately ten to fifteen minutes had passed. At that time, he gave her another cup of liquid to drink, which was possibly the same substance he had her drink earlier. Defendant told Joanne that this was the second dose in a series of three doses of the liquid; she did not recall being given the third dose.
After the second dose of liquid, Joanne became incapacitated. As she faded in and out of consciousness, she could not speak, could not move, only remembers being able to hear certain things, and recalls defendant massaging her and placing hot towels on her. Lying on her stomach in this semi-conscious state, she felt defendant having a difficult time pulling her shorts down. She then felt defendant "caress [her] butt," insert his fingers into her vagina and anus, and insert his penis into her anus. She recalled being turned over at some point and remembered being unable to control her leg from dropping off the table. By this time, Joanne was completely immobile and was unable to call out. She then felt defendant place lotion or liquid onto her hand, place his penis in her hand, and use her hand to masturbate him. She also recounted hearing snapping sounds, as if defendant was taking photographs with either a digital camera or a cellular phone.
Joanne did not remember waking up, walking out of the patient room, or dressing herself. Her next recollection was being in defendant's kitchen at about 7:30 p.m., watching her sister Jeannette decorate a Christmas tree. Although she was still visibly affected by the medication, she told her sister that she wanted to drive herself home. Jeannette insisted, however, that Joanne stay and eat something first. After taking a single bite from a sandwich, she ran to the bathroom feeling nauseous. Joanne next remembered defendant driving her home in her own car, with Jeannette following in another ...